Khan v. Payton

Filing 16

ORDER GRANTING MOTION FOR EXTENSION OF TIME TO FILE AMENDED COMPLAINT; STAYING BRIEFING; DENYING MOTION FOR EXTENSION OF TIME AS MOOT by Judge Beth Labson Freeman. Amended Complaint due by 3/3/2021. (tshS, COURT STAFF) (Filed on 1/6/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:20-cv-03086-BLF Document 16 Filed 01/06/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MUHAMMAD KHAN,
United States District Court
Northern District of California

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Plaintiff,

ORDER GRANTING MOTION
FOR EXTENSION OF TIME TO

v.

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Case No. 20-03086 BLF (PR)

M. PAYTON,
Defendant.

FILE AMENDED COMPLAINT;
STAYING BRIEFING; DENYING
MOTION FOR EXTENSION OF
TIME AS MOOT
(Docket Nos. 14, 15)

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Plaintiff, a state prisoner, filed a pro se civil rights action pursuant to 42 U.S.C. §

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1983 against an officer at San Quentin State Prison. Dkt. No. 1. On September 9, 2020,

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the Court found the complaint stated three cognizable claims, but dismissed the First

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Amendment retaliation claim with leave to amend. Dkt. No. 12. Plaintiff was directed to

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file an amended complaint within twenty-eight days from the date the order was filed, with

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the advisement that failure to respond in the time provided would result in the action

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proceeding solely on the cognizable claims. Id. at 5. When the deadline passed without a

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response from Plaintiff, the Court ordered service on Defendant on the cognizable claims

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on October 19, 2020. Dkt. No. 13.

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On November 4, 2020, Plaintiff filed a letter stating that he had no access to the law
library due to COVID lockdown and lack of access to his legal documents. Dkt. No. 14.

Case 5:20-cv-03086-BLF Document 16 Filed 01/06/21 Page 2 of 2

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He seeks an extension of time to file an amended complaint to revise his retaliation claim.

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Id. Good cause appearing, the motion is GRANTED IN PART. While Plaintiff seeks 90-

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120 days, only an extension of 56 days (8 weeks) shall be granted. Within fifty-six (56)

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days from the date this order is filed, Plaintiff shall file an amended complaint using the

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court’s form complaint to attempt to state sufficient facts to state a First Amendment

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retaliation claim. He must also include all the claims which the Court found cognizable in

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the original complaint. The amended complaint must include the caption and civil case

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number used in this order, i.e., Case No. C 20-03086 BLF (PR), and the words

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“AMENDED COMPLAINT” on the first page. Plaintiff must answer all the questions on
the form in order for the action to proceed. Plaintiff is reminded that the amended

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United States District Court
Northern District of California

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complaint supersedes the original, and Plaintiff may not make references to the original

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complaint. Claims not included in the amended complaint are no longer claims and

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defendants not named in an amended complaint are no longer defendants. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992).

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Meanwhile, briefing in this matter is STAYED. Defendants’ motion for an

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extension of time is DENIED as moot. Dkt. No. 15. The Court will set a new briefing

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schedule once Plaintiff files an amended complaint or the time for filing it has passed.

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Failure to respond in accordance with this order by filing an amended

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complaint in the time provided will result with the matter proceeding on the

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cognizable claims identified in the Court’s Order of Dismissal with leave to Amend,

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Dkt. No. 12, without further notice to Plaintiff.

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This order terminates Docket Nos. 14 and 15.

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IT IS SO ORDERED.

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Dated: _January 6, 2021_________

________________________
BETH LABSON FREEMAN
United States District Judge

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Order Granting Mot. for EOT to File Am. Compl.
PRO-SE\BLF\CR.20\03086Khan_eot-ac&stay.brief

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